Overview of Garani Video, USG case against Manning for conspiracy, and the Grand Jury

  • posted June 3, 2013

“It was like Judgment Day,” said a health worker who witnessed the May 4, 2009 U.S. air strike attack by a B-1 Bomber on civilians in the Farah Province of Afghanistan to Human Rights Watch. “Words cannot describe how terrible it was. Who can bear to see so many killed, from a two-day-old baby to a 70-year-old woman?”

Prosecutorial Powers and Bolstering Conspiracy

In March 2011, additional alleged criminal offenses including aiding the enemy were leveled at Manning. Superseding indictments with additional charges are a common scare tactic intended to pressure defendants to plea out, writes criminal law scholar, Professor Orin Kerr, in a post about the recent suicide of Aaron Swartz.

The March 2011 charge sheet was accompanied by an amended time line. Prosecutors were now alleging that the earliest date of the charged offenses was November 1 and not November 19, 2009. By arguing at trial that Manning leaked an unclassified video of a May 2009 U.S. bombing in the Farah Province of Afghanistan, which massacred 86 to 140 civilians, including women and children, within days of his arrival in Iraq to on or about January 8, 2010 the day WikiLeaks tweet

prosecutors began laying groundwork against Manning’s whistle-blower defense, by building their case for a criminal conspiracy with WikiLeaks.

When the time came to notify the court of his anticipated plea, defense recently suggested that Manning would likely not plead guilty to espionage for disclosing the unclassified Garani video, but that he might plead guilty to unauthorized possession and willfully communicating the same video in April 2010, and not November 2009 as charged. Defense had already suggested this in an early legal filing. Specifically, defense wrote that although prosecutors alleged two different date ranges for the disclosure of records relating to a military operation in the Farah Province, Afghanistan on or about 4 May 2009 and the Garani video between on or about 1 November 2009 and on or about 8 January 2010, “in reality the classified records and the video were disclosed at the same time on the same day, 11 April 2010.”

During recent court arguments concerning Manning’s proposed plea, the prosecution, however, refused to budge on a November 2009 offense date. Major Fein even alleged that the government had forensic evidence for both a November 2009 and an April 2010 transmission of the Garani video, and that prosecutors could still charged two separate criminal acts– but decided to only charge Manning once. The defense maintained that only one transmission’ occurred.

On 28 February, 2013, Manning plead not guilty to the willful communication of the Garani video. It was the only espionage offense for which he did not plead to a lesser included offense.

At Manning’s pretrial an agent from the Army’s Computer Crimes Investigative Unit (CCIU) testified that Adrian Lamo had informed them in July that he was aware of someone on the Internet that he did not know, who was allegedly attempting to decrypt the Garani video for WikiLeaks. The FBI, said the agent, was directing the investigation into Jason Katz, an employee at Brookhaven National Laboratory between February 2009 and March 2010, who was later fired for engaging in inappropriate computer activity.

The Garani video allegedly placed on Jason Katz’s work computer on December 15, 2009, however, did not forensically match the Garani video allegedly found on Manning’s workstation. “Was this the same video or a similar video to that seen on the .22 computer?,” Coombs asked the agent on cross examination. “No, Sir,” replied the agent. “Different video?” asked Coombs. “Different video, Sir,” said the agent.
The November 1 time frame on the second charge sheet also dovetails with the start date of secret 2703(d) orders for Sonic, Google, Dynadot, and Twitter to turn over information about civilians under investigation by the Department of Justice secret grand jury empanelled in Alexandria, Virginia.

On March 26 a spokesperson for the U.S. Attorney for the Eastern District of Virginia at the Department of Justice confirmed to me in an email that the grand jury criminal investigation into WikiLeaks is ongoing.

Most striking, given the lack of forensic evidence presented by the prosecution to the court or defense; in addition to the 22 grievous charges against Manning; prosecutors are sticking to a November 2009 offense date for the Garani video in order to pressure Manning to plea out to bolster a criminal conspiracy case against civilians being investigated by the Department of Justice, to include, according to one agent at the pretrial, the “founders, owners, or managers of WikiLeaks”.